Warrantless blood test on driver who went through ice in fatal crash was OK, court says

A warrant wasn't required for a police officer to test the blood of a man who drove drunk and crashed through the ice on Lake Minnetonka last year, killing his 8-month-old daughter, the Minnesota Court of Appeals ruled Monday.

Jonathan Markle was told by a Hennepin County sheriff's deputy at the hospital that he was about to be arrested on suspicion of criminal vehicular homicide and needed to give a blood sample, whether he consented or not. Markle spoke with his attorney for about 20 minutes and was again asked for a blood sample.

"I don't have a choice, right?" Markle said.

"Correct," the deputy answered.

His alcohol concentration was 0.13, nearly twice the legal driving limit. At Markle's trial, his attorney moved to suppress the test, saying there weren't pressing circumstances that would have kept the deputy from getting a warrant.

On Monday, the court said that because of the gravity of the offense and the harm that a delay in taking Markle's blood would have caused the investigation, no warrant was necessary.

"We note that it is best practice for law enforcement to obtain a warrant whenever practicable," the ruling stated.

Markle, who was convicted of criminal vehicular homicide, received a stayed 57-month sentence. But he must tell his story 100 times to groups over the next four years.

Markle took a shortcut on the way home from Lord Fletcher's restaurant Jan. 18, 2013. He drove his sport utility vehicle on the channel between Priests and Halstead bays. The ice gave way, and the vehicle plunged underwater.

Markle, his wife, Amanda, and their 2-year-old daughter, Isabelle, escaped. Tabitha, strapped into her car seat, remained trapped in the back seat. Tabitha was underwater more than 15 minutes before rescuers freed her. She died three days later.

Police smelled alcohol on Markle at the scene. He said at the time that he had drunk two beers. Later, in a pre-plea investigation, he said he'd had as many as eight that day — five or six before he picked up his family and drove them to Lord Fletcher's.

Joe Friedberg, Markle's attorney, challenged its admissibility, arguing that the blood sample should be thrown out in the wake of last year's U.S. Supreme Court ruling, Missouri vs. McNeely, that deemed search warrants necessary for blood draws in most drunken-driving cases. The court said the fact that alcohol dissipates from the body over time doesn't justify not getting a warrant.

"The appellate courts have shown little or no respect for the McNeely holding," Friedberg said Monday. "They've adopted the philosophy that the case only applies in Missouri and to McNeely."

The state Court of Appeals argued that there were several relevant factors in Markle's case, including his need for medical care for hypothermia and transport to a hospital in another county. It also cited the time pressure created to draw blood within two hours of the accident, necessary to find a person guilty of drunken driving.

The deputy wasn't able to talk to Markle until 90 minutes after the accident. The court said this case demonstrated the need for law enforcement to be able to proceed without a warrant in appropriate circumstances.

Chief Judge Edward Cleary agreed with the majority's decision, but wrote a concurring opinion to express his concern that law enforcement shouldn't be encouraged to rely on the circumstances of the case to administer warrantless blood tests except in limited situations. The message to law enforcement should be that a warrant is always required under the Fourth Amendment that prohibits unreasonable searches, except in those emergency situations, he said.

The majority emphasized the gravity of the offense, which suggested that consequently a suspect is entitled only to watered-down Fourth Amendment protections when the crime is a serious offense, like criminal vehicular homicide, Cleary wrote. Given the advances of modern communication, it should be easier than ever for officers to coordinate and apply for a warrant remotely, he added.

Friedberg said he agrees with several of Cleary's points. That the appellate court isn't following the U.S. Supreme Court's ruling in McNeely is getting outrageous, he said.

"If the [state's ruling] is going to be the law, there will be precious few who would want to live in this state," he said.

David Chanen • 612-673-4465